On January 12, 2023, the US Environmental Protection Agency (“EPA”) published its proposed National Enforcement and Compliance Initiatives (“NECIs”), soliciting public comment on the Agency’s potential Initiatives for fiscal years 2024 through 2027. These NECIs will guide EPA’s Office of Enforcement and Compliance Assurance (“OECA”) in its enforcement efforts over the next four years by focusing resources on “serious and widespread environmental problems where federal enforcement can make a difference.” Unsurprisingly, the identified NECIs build off EPA’s FY2022 Enforcement Results (on which we recently reported) and reflect OECA’s overarching goal: “to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance.”

Continue Reading TRENDING: EPA’s Proposed Enforcement & Compliance Initiatives Continue Heightened Focus on Environmental Justice and Climate Change, While Honing in on PFAS Contamination

The US Environmental Protection Agency (“EPA”) announced its enforcement and compliance results for Fiscal Year 2022 (“FY2022”) in late December. In the Annual Results report prepared by EPA’s Office of Enforcement and Compliance Assurance (“OECA”), OECA highlights EPA’s efforts to target the most serious violations of the country’s core environmental statutes and civil rights laws—effectuating the mission and principles set forth in its FY2022 to 2026 EPA Strategic Plan. According to OECA, EPA’s enforcement and compliance program used “a range of tools and best practices” to specifically target water, air, land and chemical violations that impacted communities the most. In so doing, EPA reportedly reduced, treated or eliminated approximately 95 million pounds of pollutants and compelled violators to pay over $300 million in fines, restitution or penalties. The enforcement and compliance trends highlighted below continue an overall decline seen in the last decade, yet provide evidence that EPA is succeeding in its enforcement and compliance efforts in areas that are the biggest priority for the Biden administration.

Continue Reading EPA’s FY2022 Enforcement Results: Key Focus on Environmental Justice and Climate Change

Last week, EPA announced the results of its enforcement and compliance efforts for the federal government’s 2021 fiscal year (FY2021)—October 2020 through September 2021. Prepared by EPA’s Office of Enforcement and Compliance Assurance (OECA), the report offers the first high-level look at the EPA’s enforcement of environmental laws under the Biden Administration. “Coming off a challenging few years,” said EPA’s Acting Assistant Administrator for OECA, Larry Starfield, “these 2021 results make clear that rigorous enforcement is back at EPA.” Key metrics in the report appear consistent with that message.
Continue Reading EPA Releases Annual Enforcement Statistics for 2021, Announces “Rigorous Enforcement is Back”

This week, two senior U.S. Department of Justice (DOJ) Environment and Natural Resource Division (ENRD) officials used their remarks to the American Bar Association’s annual National Environmental Enforcement Conference to convey a clear message: environmental enforcement, and in particular criminal enforcement, is back. Companies and individuals should expect more robust investigations that draw on the expertise and jurisdiction of various federal agencies, while prosecutions will be driven by enhanced DOJ criminal enforcement policies.
Continue Reading DOJ Environment Officials Emphasize Enforcement of Environmental and White Collar Crimes

The White House announced on July 22, 2021, President Biden’s nomination of David Uhlmann to be the Assistant Administrator for Enforcement and Compliance Assurance (OECA) at the US Environmental Protection Agency (EPA). Uhlmann is currently the director of the Environmental Law and Policy Program at the University of Michigan Law School and was previously a federal prosecutor for 17 years, including as the Chief of the Environmental Crimes Section of the US Department of Justice. His nomination signals the White House’s clear intent to reinvigorate EPA’s enforcement program after what the EPA’s Inspector General found in its March 31, 2020 report to be years of declining case statistics across multiple administrations.

Continue Reading Nominee to lead EPA Enforcement Will Be Aggressive and Thorough

The Biden Administration’s enforcement priorities began to take shape last week, as the US Environmental Protection Agency’s (EPA) enforcement arm issued a pair of memoranda encouraging the use of certain tools in civil enforcement and settlements and for prioritizing enforcement efforts in environmental justice communities. Lawrence E. Starfield, a senior career EPA official currently serving as Acting Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA), issued both memoranda. The memos demonstrate a concrete shift in EPA’s enforcement philosophy—doubling down on Next Generation or “NextGen” compliance tools and Supplemental Environmental Projects (SEPs), and focusing on environmental justice—under the new administration. The specific ways in which EPA enforcement staff will carry out these policies are not yet known and will develop over time, but it is important for regulated entities to be aware of, and prepared for, EPA’s use of NextGen compliance tools and focus on strengthening enforcement in environmental justice communities.

Continue Reading EPA Enforcement Policies Prioritize Environmental Justice and Embrace “NextGen” Compliance Tools

Last week, the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA) released its annual enforcement report detailing the results of the past year’s civil and criminal enforcement and compliance efforts.  The report covers the 2020 fiscal year, which ran from October 1, 2019, through September 30, 2020, and thus provides some key insight into the effect of the COVID-19 pandemic on environmental enforcement.
Continue Reading EPA’s FY2020 Annual Enforcement Results Are In

A January 12, 2021 US Department of Justice (DOJ) memorandum extends and provides additional legal analysis to support the government’s increasing drumbeat against settling cases and reducing environmental penalties in recognition of Supplemental Environmental Projects or “SEPs.”  The new memo addresses the limited circumstances under which attorneys in DOJ’s Environment and Natural Resources Division (ENRD), the division of DOJ that represents EPA and other federal agencies in enforcing environmental laws, may include certain mitigation requirements in settlement agreements.  Issued last week by ENRD Assistant Attorney General Jeffrey Bossert Clark on the same day that he announced his departure from the Department, the memo bolsters the previously provided rationale for ENRD’s policy prohibiting SEPs in settlement agreements.  It also distinguishes SEPs from “equitable mitigation,” which the memo defines more narrowly and considers to be both permissible and appropriate.  The memo also lists criteria to guide ENRD attorneys evaluating whether equitable mitigation measures are appropriate in a given civil enforcement case.
Continue Reading New Memo Doubles Down and Bolsters Justice Department Positions on Limiting Supplemental Environmental Projects

In the age of COVID-19, demand for surface wipes, sprays and similar products is at record levels. Retail stores have struggled to keep supplies stocked and shelves may once again be emptied when the winter flu season arrives. If schools and businesses reopen concurrently, the prospects of securing these products becomes even bleaker, which may re-fuel consumer stockpiling. To meet this surging demand, manufacturers have ramped up production and new entrants are pouring into this market space in unprecedented numbers. Supply chains are already stressed and further straining is expected to continue.

Continue Reading Got COVID-19 “Claims”: Recent US EPA Enforcement under FIFRA Emphasizes Compliance Demands on Pesticide Product Supply Chains, especially for Products Claiming to be Effective against Coronavirus

As states are seeing an increase in COVID-19 cases and pausing reopening efforts, the US Environmental Protection Agency (EPA) has forged ahead with setting a definite termination date for its temporary COVID-19 enforcement policy.
Continue Reading EPA Sets Termination Date for Temporary Enforcement Policy